Divorce Law Monitor

Non-Disparagement Orders in Custody Cases

May 27, 2021

   

As my partner Andrea Dunbar recently wrote, it is inappropriate to post negative comments about the opposing party in a custody matter on social media. But can the court prohibit it? The answer in most cases is no.

Notwithstanding the fact that the Commonwealth of Massachusetts has a compelling interest in protecting children from being exposed to disparagement between their parents, freedom of speech is protected by the First Amendment to the U.S. Constitution. The First Amendment limits the government’s power to restrict expression simply because the government does not like the subject matter, idea, or content of the message. An Order from a Probate and Family Court judge instructing a party not to post comments about the other parent on social media is called a “non-disparagement order.” These types of orders are prior restraint on speech. In order for prior restraint on speech to be allowed, the speech must be truly exceptional. This requires that the harm expected from the unrestrained speech must be grave, the likelihood of the speech must be all but certain absent the prior restraint, and the order must be the least restrictive way to stop the grave harm. The Massachusetts Supreme Judicial Court has held that non-disparagement orders precluding comments about another parent – even when those comments are profane, vitriolic and vulgar – are unconstitutional, absent a showing of imminent grave harm to a child as a result of that disparagement. In most instances, the Court will not be able to make a showing of grave harm and generally cannot restrict a parent’s freedom of speech by its own order. However, the court can uphold an agreement made by the parties to a custody case to refrain from disparaging one another, whether on social media or otherwise.

While the Court may be forced to allow a parent to exercise his/her free speech, it is still wise to avoid doing so, lest you find yourself losing parenting time due to an inability to act in the best interests of the child.

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